Wednesday, 30 November 2016

Might the UK stay in the single
market, even if it leaves the EU? This is the issue to be raised by planned litigation
relating to the UK’s position in the European Economic Area (EEA) – a zone set
up by a treaty between the EU, its Member States, and Norway, Iceland, and
Liechtenstein, which extends EU single market rules to the latter three States.
It raises issues of both international and domestic law; but first, it would be
useful to explain the EEA further.

The EEA

The EEA treaty was originally signed
in 1991, adjusted in 1992, and come into force at the start of 1994. The aim
was to extend the EU’s internal market (known as the ‘single market’ in UK
political debates) to the countries which were part of the European Free Trade
Area (EFTA). In the event, three of those countries decided to join the EU from
1995 (Sweden, Austria and Finland), and Switzerland decided not to sign up
after all, relying on a separate network of treaties with the EU.

Some believe that the EEA is the
same as the EU, but there are many differences. The EEA does not include the EU’s common trade
policy, and indeed EFTA states have signed separate trade
deals with non-EU countries. It also does not include EU policies on tax, justice and home affairs, foreign
policy, agriculture, the single currency and fisheries, although EFTA states
have signed separate agreements with the EU on aspects of these issues. In
particular, while all EFTA states have signed up to the EU’s Schengen system
for the abolition of internal border controls, that is a separate issue from
the EEA (indeed, the treaties to become Schengen associates were signed later
than the EEA).

The EEA does include applying EU laws on the free movement of goods, services,
capital and people, along with the freedom of establishment. However, EFTA states can apply an emergency
safeguard to limit free movement, including the free movement of people. The
EEA also involves participation in most of the EU laws concerns labour and
environment, as well as competition and state aids. EFTA states make
contributions to participate in EU programmes and to assist the development of
poorer EU countries; but the money does not go into the EU budget and the EFTA
countries have more control over how it is spent.

As regards institutions, the EFTA
states have no role in EU institutions, but rather the EEA has its own bodies,
where EFTA states are consulted on draft EU laws, but do not have a vote on the
EU decision-making process. They are expected to apply new EU laws within the
scope of the EEA (which, as noted already, does not extend to many areas of EU
law-making), but they can in principle reject them, subject to the possibility
of EU retaliation. They are not directly subject to the EU court, but instead
take part in an EFTA Court, which usually follows the EU court’s case law –
although note that some EFTA Court judgments are not binding.

Some argue that the UK should
stay part of the EEA on at least an interim basis after leaving the EU, while
negotiating a longer-term agreement. The basic arguments for this position are
set out here;
see also the EUreferendum
site. One thing is clear: staying in the EEA was not on the referendum ballot paper. While comments by some on the Remain
side or Leave side suggested that a vote on EU membership was also a vote on
single market membership, that is not what voters actually voted on.

How to leave the EEA?

Leaving the EEA has two dimensions:
international law and national law. Internationally, the only explicit way to
leave the EEA is by invoking Article 127 of the EEA treaty, which says that any
party can leave with at least 12 months’ notice. There is no explicit
requirement to name the date of departure when giving the notice, so arguably
the UK could specify the date of departure as the same date it leaves the EU.
Therefore, as long as the UK gives notice to quit the EEA at least twelve
months before Brexit Day, it could align leaving the EEA with leaving the EU.

What if the UK doesn’t give that
notice? In that case, although Article 127 is the only explicit way to leave
the EEA, some argue that that the UK would leave the EEA automatically when it
leaves the EU. Why? Firstly, because the clause on territorial scope (Article
126) refers to the EU and EFTA states, but not to any other countries. Also, many
of the substantive legal rules refer to the EU and EFTA states. Article 2(c)
defines the contracting states as regards the EU and its Member States, and
allocates responsibility as between them, but does not mention EFTA states.

If this analysis is correct, the
UK could still rejoin the EEA after
(or at the same time) as leaving the EU. In that case, Article 128 says the UK
would have to join EFTA and apply to rejoin the EEA, subject to EU and EFTA
states’ agreement, because only EU and EFTA states can join up to the EEA.
(Article 128 isn’t, by itself, a good basis for arguing that the UK would have
to leave the EEA if it leaves the EU, because it only addresses which countries
may join the EEA in future, not which countries are members now and whether they might retain
membership or implicitly lose it if they leave the EU or EFTA. It might,
however, be referred to reinforce a conclusion based on Article 126 or other
provisions).

So does the UK implicitly lose
EEA membership if it leaves the EU? The answer isn’t clear, because the
drafters of the EEA treaty never considered this possibility. On the one hand,
the presence of an explicit clause on leaving presumes that states cannot
implicitly cease to be EEA members. On the other hand, the substantive
provisions and the clauses on territorial scope imply that leaving the EU is
incompatible with being part of the EEA – unless the country concerned joins EFTA.
That raises the question of how this would work: arguably there would be a ‘fundamental
change of circumstances’ under Article 62 of the Vienna
Convention on the Law of Treaties. (Note that the latter clause can’t be
used as a quick route to leave the EU,
since it only applies where a change was ‘not foreseen’ by the parties; but the
prospect of a state deciding to leave the EU clearly was foreseen by the parties to the EU Treaties, since Article 50
TEU refers to it). Or the other parties
to the EEA could argue that the UK had committed a ‘material breach’ of the EEA
by ceasing to be an EU Member State (if the UK does not join EFTA), and
terminating application to the UK under Article 60 of the Vienna Convention.

The issue is arguably relevant by
analogy to many other treaties which the UK signed up to as part of the EU, in
particular trade agreements. Does the UK retain its status under the EU’s free
trade deals with Korea, Canada and many other countries automatically on Brexit
Day, or does it lose that status and have to negotiate a separate treaty?
(Arguably, the international law principle of continuity of treaties could play
a role here; and the legal issue also arises of whether the UK can start
negotiating replacement treaties, if it has to, before Brexit Day).

National law aspects

The termination of the UK’s EEA
membership raises different issues as a matter of national law – which perhaps
is the purpose of the planned litigation. If the UK government gives notice
under Article 127, or asserts that it will implicitly cease being a party to
the EEA on Brexit Day, does Parliament have to give its approval?

If the government is legally
obliged (as a matter of international law) to give notice of leaving the EEA
separately from the Brexit process, then the case is arguably analogous with
the Miller case recently decided by the High
Court, and now on appeal to the UK Supreme Court. That case raises the question of whether the
UK government’s royal prerogative extends to the termination of the UK’s EU
membership, or whether Parliament must approve such use of the prerogative
because leaving the EU would terminate rights conferred by an Act of
Parliament. Since EEA membership is referred to in the European
Communities Act, and extends many (though not all) of the same rights conferred
by the EU Treaties, the answer to this question which the Supreme Court
ultimately gives in the Miller
judgment should logically apply by analogy to the EEA.

Therefore, in this scenario, if
Parliament is obliged to approve withdrawal from the EU, it is also obliged to
approve withdrawal from the EEA. And since EEA membership was not on the referendum ballot paper, the
force of the political argument that Parliament ought to follow the view of the
majority of those voting that the UK should leave the EU is not as strong.
There will undoubtedly be a political argument that the referendum vote should
apply by analogy – since to some extent the issues raised often by the Leave
side as regards EU membership (migration of EU citizens, contribution to the
EU, control over law-making) apply also to the EEA. But, as noted already,
there are possible counter-arguments: the free movement safeguard clause in the
EEA, the different nature of budget contributions, and the more limited scope
of the EEA compared to EU law. Participation in the EEA could also, as some Leavers have suggested, be limited in time: an interim status pending negotiation of a longer-term framework for UK/EU relations.

On the other hand, if there is no
distinct legal obligation to notify departure from the EEA, because its
application to the UK will necessarily cease when the UK leaves the EU, then
any Parliamentary vote to approve invoking Article 50 should logically
encompass also the end of EEA membership, and the legal challenge relating to
the EEA may find it harder to succeed. Or if the UK government succeeds in its
appeal in Miller, it would be hard to
convince a court that leaving the EEA raises distinct questions from leaving
the EU.

In any event, any fresh
litigation on the EEA could provide an opportunity to argue about whether an
Article 50 notice is revocable – and it might be argued that that issue, and/or
the issues about termination of EEA status as a matter of international law, should
be referred to the ECJ to decide.

Sunday, 27 November 2016

Perhaps
the most curious aspect of the Great
Repeal Bill is that ‘repeal’ is a misnomer: it will not repeal to a
significant extent at all. Rather, the ultimate Act will initially convert the
existing acquis
of EU law into British law at the point of formal separation from the EU,
following the completion of Brexit negotiations. This conversion will provide some
degree of certainty and continuity in the inevitable turmoil which will follow UK
withdrawal from the EU as the (at least) initial changes of domestic law will
be relatively minimal.

The
element of ‘repeal’ in the Great Repeal Bill will instead take the form of the
incorporation of a Henry
VIII clause. Named for the King who forced the passing of the Statute of
Proclamations 1539 empowering his decisions both to change and have the same
force as legislative acts, such a clause enables government to repeal or amend
primary legislation by means of a secondary act with limited or no further
parliamentary scrutiny.[1] For the complexity,
intricacy and sheer mass of EU law which forms part of UK law (for a cake analogy),
delegating decisions to secondary legislation makes pragmatic sense: does
parliament really need to be bogged down with issues such as labelling
regulations when there are more important debates to be had, trade deals to be
made, and economic and political crises to be resolved?

Beyond
the answer: yes, executive action during Brexit absolutelyshouldbemonitored,-
the consequence of a Henry VIII clause in the Great Repeal Bill from a rights
perspective is that the question of whether rights based on EU norms are
compatible with post-Brexit Britain could be decided by a Minister, rather than
through Parliamentary debate and an Act of Parliament. In this post, I explore
the ghost of Henry VIII’s tyranny in his namesake legal clause, and outline
some of the possible impacts of a Great Repeal Act and a Henry VIII clause on
human and fundamental rights through the (somewhat shoe-horned) metaphor of the
fate King Henry’s six wives.

The
Ghost of Henry VIII

Henry
VIII clauses are intrinsically problematic for democratic governance: they levy
the convenience of a (relatively) quick amendment against the scrutiny of
parliamentary oversight. Immediately after Henry VIII’s death in 1547, the
Statute of Proclamations was repealed. No man, not even a king, should have
such power to make, amend or repeal primary legislation without Parliament. For
this reason, Henry VIII clauses have been subject to consistent criticism,
and an emphasis on their use only when absolutely necessary: the 1932
Donoughmore Committee Report on Henry VIII clauses (for which only nine could
be found in contemporary Acts) found that their use might only be when
‘demonstrably essential’ and must be justified by the Minister ‘to the hilt’. In
a 2010-11 Report, the House of Lords Constitution Committee found that

‘the
use of Henry VIII powers, while accepted in certain, limited circumstances,
remains a departure from constitutional principle… [which] should be
contemplated only where a full and clear explanation and justification are
provided.’[2]

Henry
VIII clauses are, however, not foreign to EU law in the UK. Article 2(2)
European Communities Act 1972 is itself a Henry VIII clause, allowing the
amending of UK law to comply with EU acts. The difference here, as has been pointed
out, is that EU acts go through multiple layers of legislative checks
before becoming law, and so not comparable in a situation post-Brexit.

The
issue is scale: it is now beyond an academic debate to consider the scope and breadth
of EU norms incorporated into British law. Simply enumerating some of the sweeping
areas of influence indicates only a shadow of the sheer scale of replacement,
repeal and revision ahead for Parliament: external trade; competition;
financial and banking services; telecommunications and data protection;
fisheries and agriculture; EU standards agencies; cooperation in matters of
security and the criminal law; and the environment. This also does not account
for rights based on EU law, including existing EU residents’, workers’ and
consumers’ rights, or even the right to be
forgotten. One of the Supreme Court Judges hearing the appeal on the Article
50 judgment, Lady Hale, raised the question
of whether a simple Act would be enough to authorise the government to give
notice, or whether the 1972 Act would comprehensively have to be replaced prior
to triggering Article 50. Though there was no elaboration in the speech, -
speculating, this could perhaps be a contrast between the rumour of a ‘short
three-line bill’ to authorise Brexit, and a more comprehensive bill clarifying
the Brexit process, transition arrangements and the post-Brexit legal
situation. However, the ECA 1972 cannot be repealed prior to the conclusion of
the withdrawal agreement, as EU law continues to be applicable within the UK
until that point. The (current) official stance is not such a comprehensive
replacement, ostensibly leaning instead towards a do-now, fix-later approach.

To shoe-horn
the metaphor, a Henry VIII clause in a Great Repeal Act will hand Ministers an
executioner’s axe to a range and breadth of law based on EU norms which is
still not fully understood or accounted for. This is by no means alarmist
argument, as widening the scope of power under a Henry VIII-type clause to
excise the influence of the EU has been advocated
by a barrister for the Leave Campaign. For
all the heralding of taking control
back to the UK Parliament, Henry VIII clauses, especially in the extended
scope necessary to cope with large scale repeal, will be less democratic,
create more legal uncertainty, and take the reins of control away from
Parliament and (potentially) rights away from individuals. Even as the controls
imposed on secondary legislation is an open issue, the latent threats to
cornerstones of British constitutionalism, parliamentary sovereignty and the
rule of law, are evident: the power to
amend primary legislation by Ministers acting independently of parliamentary
scrutiny and oversight runs counter to democracy, legal certainty, and the
ultimate supremacy of Parliament.

The ultimate
irony is that, for all the rhetoric of democracy and a return to parliamentary
sovereignty, the powers on which Government is relying to leave the EU are royal,
not democratic. Beyond the use of a Henry VIII clause, the question of who is permitted
to trigger Article 50 currently awaiting appeal before the Supreme Court, is a
fight between a royal prerogative and parliamentary sovereignty. In the current
approach to Brexit, there seems a concerning commonality with the character of Henry
VIII beyond his namesake clause in the use of unchecked executive power.

The
(Possible) Fates of Fundamental Rights

To
sketch out some of the possible consequences of the Great Repeal Bill and the
Henry VIII clause on rights, we can follow the rather grim framework provided
by Henry VIII’s wives. Their fates followed a (tragic) pattern: divorce,
beheaded, died, divorce, beheaded and survived. We should rightly be concerned
for the fates of fundamental rights protections post-Brexit in the divorce between
the UK and the EU which encompasses not only the likely biggest divorce
settlement in history, but will also see the division and separation of
significant rights and protections away from UK citizens and residents.

The
right to complain to, or seek a decision from, EU Institutions will be beheaded
by Brexit. For instance, post-Brexit, citizens and residents will not have the
opportunity to complain to the Commission for a breach of EU law or a violation
of their rights by UK authorities. Under the current schema, if their complaint
is upheld, the Commission can make a request to the UK that it respects the
rights of its citizens and residents, or even bring proceedings in the Court of
Justice for a violation of EU law. Referrals and the limited right of direct
access to the EU’s court system could be similarly cut off by Brexit, relying
on the domestic judicial system and common law and ECHR rights.

This
is linked to a significant death in the UK arising from Brexit: the rights
which arise from the Treaties, which cannot be restored or replicated in UK
law. These rights would include, for example, the rights of EU citizenship, and
free movement between Member States. Notably, however, it would mean the death
of the application of the EU Charter
of Fundamental Rights in the UK. The EU Charter, which can be relied upon
in national proceedings when the subject-matter of the litigation falls within
the scope of EU law has more normative clout than the comparable European Convention
on Human Rights, operative in the UK under the Human Rights Act 1998. This
means, for instance, that a violation of the EU Charter requires the
disapplication of the offending law, while a violation of the ECHR under
section 4 HRA 1998 can, at worst, only result in the issuing of a declaration
of incompatibility or a signal to Parliament that it should consider amending
the legislation.[3]

Serious
questions highlight the uncertainties which will arise as a consequence of the divorce
between the CJEU and the UK judicial systems. This will cause issues for the
interpretation for law which has been wholesale incorporated into UK law:
should UK courts follow subsequent cases regarding the interpretation of laws
by the Court of Justice? In situations where the similarity of the law is
required for reasons of trade (for example, product specifications), this would
follow. Should claimants then continue to plead EU case law before British
courts as persuasive precedent? And if so, how far, and in which areas? The
uncertainty which would arise from the contrary interpretation of a UK law
based on EU norms would also need resolution: should a subsequent judgment of
the Court of Justice take precedence over a UK ruling? These are only some of
the ‘known
unknowns’ of Brexit, no doubt there are far many more currently unaccounted
for.

Further,
there will be the possible beheading of rights based on EU law, which can be
replicated in UK law, but may be contentious in a new political regime: for
example, consumer and workers’ rights. The existence of a Henry VIII clause endangers
these rights and others, as they could be removed either accidentally or
intentionally by amendment of the primary act by executive decision. As
outlined above, there would be no recourse to EU institutions to challenge
this, or to the Courts if there is not explicit protection for these rights at
common law or in the ECHR.

After
such gruesome fates – one survivor will be the ECHR which, through the Human
Rights Act 1998, does not depend on the EU for its continued application in the
UK law. As I’ve hypothesised,
it’s possible – if unlikely - that we could witness a new relevance and force
with the ECHR to fill a gap in rights protection. The ECHR does not have equal normative
clout as directly effective EU rights, as evidenced by Benkharbouche &
Janah. Other survivors would be rights that have existed at common law,
such as the rights to personal security, liberty, and property. It’s possible
even, that there will be a new impetus for a ‘British
Bill of Rights’, however misplaced
that optimism may be.

Whatever
ultimately survives the Great Repeal Bill and a Henry VIII clause, it will be a
shadow of a larger, and likely uneulogized, death. The last seven decades have
been building a progressive narrative of strengthening and enhancing
fundamental rights across Europe and the world. Hopeful and aspirational
international declarations of human rights have led progressively towards the
adoption and implementation of more robust and justiciable instruments for the
protection of fundamental rights in the domestic sphere. Amid political,
social, legal and economic crisis, – this narrative is dying. In the current
climate, it is perhaps more than the ghost of Henry VIII that will haunt us.

[3] For example Benkharbouche
v Sudan, and Janah v Libyawherein the Court of Appeal held that the embassies of
Sudan and Libya could not rely on the State Immunity Act 1978 to bar employment
rights claims under the EU Working Time Directive, as it would violate Article
47 CFR which in turn required the disapplication of the Act. The Court found a
violation under Article 6 ECHR, but could only issue a declaration of
incompatibility.

Wednesday, 16 November 2016

Daniel Sarmiento,
Professor of EU Law at the University Complutense of Madrid*

The Court of Justice’s judgment
in Ullens
de Schooten, rendered yesterday, is a very welcome development. The Court’s
Grand Chamber has put some order in a traditionally chaotic and obscure area of
the case law: the definition of a purely internal situation in free movement
cases referred by national courts in the context of preliminary reference
proceedings. It was a life or death issue for the success of the case, because
depending on whether the claims of the applicant – who sought damages on the
grounds that he was wrongly convicted of running an illegal laboratory – proved
to have a trans-frontier link or not, he or she would benefit, or not, from
free movement rules. After many years of disorderly case law, mostly in
chambers of five judges, the Grand Chamber has taken the reins and provided
clear guidance.

In a nutshell, Ullens de Schooten confirms in general
terms what the Court seemed to be doing in the past: as a rule, transfrontier
links with free movement rules are quite flexible and easy to prove, but when
there is no link whatsoever, then only in four different scenarios a national
judge will be able to rely on free movement rules. The scenarios are the
following:

First, when it is not inconceivable that nationals established in
other Member States have been or are interested in making use of those freedoms
for carrying on activities in the territory of the Member State that had
enacted the national legislation in question, and, consequently, the
legislation, applicable without distinction to nationals of that State and
those of other Member States, was capable of producing effects which were not
confined to that Member State. This is the Blanco
Perez y Chao situation.

Second, when the referring court
makes a request for a preliminary ruling in proceedings for the annulment of
provisions which apply not only to its own nationals but also to those of other
Member States, and the decision of the referring court that will be adopted
following the Court’s preliminary ruling will also have effects on the
nationals of other Member States. This is the Libertsituation.

Third, when free movement rules
may prove to be relevant in a case confined in all respects within a single
Member State, where national law requires the referring court to grant the same
rights to a national of its own Member State as those which a national of
another Member State in the same situation would derive from EU law. This is
the Guimont
situation.

Fourth, cases in which, although
the facts of the main proceedings are outside the direct scope of EU law, the
provisions of EU law have been made applicable by national legislation, which,
in dealing with situations confined in all respects within a single Member
State, follows the same approach as that provided for by EU law. This is the Dzodzi
situation.

It appears from yesterday’s
judgment that the Court is putting the burden of proving the existence of any
of the enumerated situations on the referring judge. This appears to be the
case, because the Court makes in paragraph 55 a very specific reference to
article 94 of the Rules of Procedure, a provision that lists the contents that
must be included in an order for reference pursuant to Article 267 TFEU. In
other words: the Court will be happy to apply any of the four exceptions to the
purely internal situation rule, but only if national courts make an effort to
explain why the referred case falls under any of these four situations. If the
national court simply makes no effort whatsoever, then the Court will do what
it did yesterday in Ullens de Schooten:
declare the absence of a transfrontier link and the lack of arguments
justifying the application of any of the four situations.

This is good news for lawyers
that deal with free movement rules, particularly before national courts, but it
does not solve the genuine problem. In fact, the failings of the previous
case-law were not only to be found in a lack of consistency, but also in the difficulty
to apply the standards that have now been blessed by the Grand Chamber. Take
the Blanco Pérez y Chao exception: to
argue that it is not inconceivable that nationals established in other Member
States have been or are interested in making use of free movement rules is not
much help, because it is difficult to imagine a case in which a national from
another Member State may not, in hypothesis, “be interested” in making use of
free movement. The Opinions of Advocates General Wahl and Kokott in the cases
of Venturini
and ETI,
respectively, show how tricky this criterion can be.

So the Court has taken an
important step, but probably not enough to provide all the much-needed clarity
that free movement rules still need. But it’s a first step in the right and
very welcome direction.

The judgment also speaks highly
of the Grand Chamber’s role as a forum in which to deliver clear guidance over
past and erratic case law. This has always been the role of the Grand Chamber,
but it sadly lost its way in the past years. For too long a time Grand Chamber
judgments were cryptic, sometimes contradictory and lacking a lot of much
needed legal reasoning. Things have improved in the past year, and this must be
the result of the new President, who has voiced his priorities in public, among
which stands out the need to recover the role of the Grand Chamber as a forum
to set guidance and principle. Ullens de
Schooten might be a little frustrating, but it does provide much more than the
Grand Chamber of the past provided to its infinitely more frustrated readers.

Saturday, 12 November 2016

From its panicked conception in
the febrile months following the 9/11 terrorist attacks, the European
Arrest Warrant (EAW) has been the flagship of EU criminal law. Replacing
traditional extradition law with a fast-track system which scraps most of the
traditional restrictions on extradition, it has alarmed critics concerned by
miscarriages of justice, but thrilled supporters who welcomed the speedier
return to justice of a greater number of fugitives.

Despite qualms by national
constitutional courts, the ECJ has long been insouciant about the human
rights critique of the EAW. It dismissed
a challenge to the validity of the EAW law on human rights grounds, and (in
effect) ridiculed
a national court which asked if it was possible to refuse to execute an EAW due
to human rights concerns, answering a ‘straw man’ argument the ECJ invented
instead of the serious questions sent by the other court. In its Melloni
judgment, the ECJ placed a ceiling on the application of national human rights
protection to resist execution of an EAW; but it never enforced a corresponding
floor for those rights. Again and again, the Court ruled that national courts
could only refuse to execute EAWs on the limited grounds expressly mentioned in
the EAW law, instead focussing exclusively on the need to make the EAW system
as effective as possible.

However, since the entry into
force of the Lisbon Treaty, this staunch approach has been mitigated by the
adoption of six new EU laws on various aspects of fair
trial rights – five of which also confer procedural rights on fugitives
challenging the application of an EAW. (On the implementation of the first two of
these laws, see the report
just adopted by the EU’s Fundamental Rights Agency). In the last year, the ECJ
has begun to interpret these laws (see the judgments in Covaci,
Balogh
and Milev).

But even apart from these fair
trials laws, the ECJ in the last eighteen months has begun to show a striking
concern for ensuring at least some protection for human rights within the EAW
system. Last year, in Lanigan
(discussed here),
the Court ruled that if a fugitive was kept in detention in the executing State
while contesting an EAW there, the limits on the length of detention in extradition
cases set out in the case law of the European Court of Human Rights (ECtHR)
apply, by virtue of the EU Charter of Fundamental Rights.

This spring, the ECJ turned its
attention to detention conditions in the Member State which issued the EAW. Following soon after
concerns expressed by the German constitutional court on these issues
(discussed here),
the ECJ ruled in AranyosiandCaldaruru
that the German authorities, when executing EAWs issued by Hungary and Romania,
had to consider concerns raised by the fugitives about prison overcrowding in
those countries, which had led to ECtHR rulings finding violations of Article 3
ECHR (freedom from torture or other inhuman or degrading treatment or
punishment). The national court had to apply a two-step procedure in such
cases, assessing whether there was a) a systemic failure to ensure decent
prison conditions in those States, and b) a ‘real risk’ that the individual
fugitive would be subject to such conditions if the EAW was executed.

What if these tests were
satisfied? The ECJ was unwilling to backtrack from its position that the list
of grounds to refuse to execute an EAW set out in the EAW law is exhaustive. Instead,
it ruled that the executing State’s authorities had to postpone execution of the EAW until the situation in the issuing
State had improved. (The EAW law is vague about grounds for postponing the
execution of an EAW, and the ECJ had already ruled in Lanigan that the deadlines to execute an EAW set out in the law could,
in effect, be ignored if necessary). If the fugitive was detained in the
executing State in the meantime, the limits on detention set out in Lanigan applied, with the additional
proviso that a fugitive could not be detained indefinitely pending execution of
an EAW. (In the later case of JZ,
the ECJ aligned the definition of ‘detention’ in the EAW with the ECtHR case
law on this issue).

This was only the beginning of
the ECJ’s scrutiny of issuing States’ laws and practice in the EAW context. In Bob-Dogi,
the Court ruled that Hungary could not simply issue EAWs as a stand-alone
measure, with no underlying national arrest warrant, inter alia because the purpose of requiring the prior issue of a
national arrest warrant was to ensure the protection of the suspect’s
fundamental rights. The previously paramount objective of efficiency of the EAW
system – which would obviously have dictated the opposite conclusion – was mentioned
only in passing. Moreover, the Court side-stepped its prior refusal to accept additional
grounds for refusal to execute an EAW, concluding that the EAW had not been validly
issued in the first place.

Next, in Dworzecki,
the ECJ insisted that a Member State issuing an EAW following a trial held in absentia had to have made proper
efforts to find the fugitive before the trial. In this case, the law expressly allows
for non-execution of the EAW.

Finally, in a trilogy of cases
decided last week, the Court ruled that issuing Member States don’t have full
discretion to decide what a 'judicial authority' is, for the purpose of
issuing EAWs. The concept extended beyond judges to include those administering
the justice system, such as Hungarian prosecutors (Ozcelik).
However, it does not extend to the Swedish police (Poltorak),
or to officials in the Lithuanian justice ministry (Kovalkovas).
(British readers may wish to compare these rulings to the Supreme Court’s
ruling in the Assange case).

Again, as in the Bob-Dogi judgment, the Court
side-stepped the ‘exhaustive grounds for non-execution’ problem which it had
previously created for itself, by ruling (in Poltorak and Kovalkovas)that the relevant EAWs had never
been validly issued at all. Also, in an interesting use of ‘soft law’, the
Court ruled that Sweden and Lithuania could not argue that those invalid EAWs should
remain valid for a limited period until they changed their laws, since the
Council had warned them back in 2007 in an evaluation report that these
practices infringed the EAW law. Criminal defence lawyers – and justice
ministry officials – may want to look at the Council
evaluations of all Member States in detail in this light, since they
contain many other criticisms of national implementation of the EAW.

Comments

Has the Court turned from poacher
to gamekeeper of human rights in the EAW context? Certainly there are still many
concerns about miscarriages of justice as regards the EAW (see the Fair Trials website, for instance).
But the rulings suggest a significant change of direction, which addresses some
concerns and may have opened up the door to addressing others. What might
explain this turn-around?

One factor may be the ruling of
the German constitutional court on detention conditions in the EAW context,
although it’s notable that the ECJ was never previously receptive to
constitutional courts’ concerns about the EAW. Another factor may be a
willingness to compromise after the ECJ’s controversial
ruling on EU accession to the ECHR, in which it lambasted the draft
accession treaty for (among other things) not taking sufficient account of the ECJ’s
case law on mutual recognition in Justice and Home Affairs matters, which only
allowed for human rights to trump mutual recognition in ‘exceptional’ cases. It’s
possible that having marked its territory in that judgment, the ECJ felt it
could relax and adopt a more flexible approach of its own volition (and under
its own control), which might facilitate discussions on renegotiation of the
accession agreement.

Another aspect of the background
to this case law may be concerns about the adequate protection of human rights
and the rule of law in a number of Member States. The formal process for
sanctioning or warning Member States about such concerns is set out in Article
7 TEU, but the EU is unwilling to use it at the moment. The preamble to the
EAW law says that the EAW system can only be fully suspended as regards an
entire Member State if Article 7 is invoked. The ECJ clocked that provision in Aranyosi and Caldaruru, but then
concocted the compromise position of postponing execution of EAWs in individual
cases until concerns about detention conditions could be addressed: a measured,
individualised solution for these particular human rights problems with the
EAW.

Furthermore, the guarantee of judicial
control of the issue of EAWs in recent judgments is expressly justified by
reference to ‘the separation of powers which characterises the operation of the
rule of law’. Despite the reluctance of the EU to chastise Member States for
systematic concerns about the rule of law, the CJEU’s rulings at least ensure
that any general human rights concerns are addressed at the level of application
of EU legislation.

Indeed, these recent judgments
might not be the end of the story: they can fuel arguments for the postponement
or invalidity or EAWs due to other human rights concerns too. In particular,
fugitives could argue that the prospect of long pre-trial detention in another
Member State is also a reason to postpone execution of an EAW – although this
argument is only coherent if the fugitive is not being detained in the executing State in the meantime. Already
the Aranyosi and Caldaruru judgment
raises awkward questions about how to judge what happens in another Member
State’s prisons – so much so that the German courts have referred the Aranyosi case back
to the CJEU with further questions. Postponing the execution of an EAW does not,
by itself, tackle the underlying problem of prison overcrowding, and it leads
to the risk that those who have committed crimes may consider moving to another
Member State to increase their odds of enjoying de facto impunity for them.

This strengthens the case for EU
legislative intervention as regards prison conditions and length of pre-trial
detention in the EAW context. The Commission issued a Green
Paper on this issue back in 2011, and Member States were not enthusiastic.
But the Commission has indicated in light of the recent rulings that it may make a
proposal in future. (See also the new report
of the EU Fundamental Rights Agency on these issues). This would be a good
opportunity to make further reforms to the EAW system, to require a
proportionality check before issuing EAWs in the first place – so that no one
is subject to an EAW for the theft of a piglet, or someone else’s beer at a house
party – and to build in more frequent use of European
Supervision Orders (a form of ‘Euro-bail’), the EU laws on transfer of prisoners and
sentences, and the use of modern technology to conduct more criminal proceedings
with the virtual (but not the physical) presence of the suspect (see generally
the Ludford
report on possible reforms of the EAW system). There is a better balance
between effective prosecutions and human rights concerns waiting to be struck.

Barnard & Peers: chapter 9,
chapter 25

JHA4: chapter II:3, chapter II:4

Photo credit: picture – alliance/Horst
Galuch

* This post is based on a keynote
speech I gave on 10th November 2016, at a conference on criminal
justice and human rights organised by the EU Fundamental Rights Agency in
Bratislava

Sunday, 6 November 2016

This post casts another
look at the recent High Court judgment
on the government’s power to start the process of UK withdrawal from the EU. It
reflects further on the EU law implications of the judgment, beyond the
political furore that it has raised and possibly beyond the immediate
contingencies of Brexit. The argument is that the judgment, albeit focusing on
a question of UK constitutional law, also engages with the problem of
safeguards for transnational rights – e.g. rights of British nationals in other
Member States- in the process of a Member State’s withdrawal from the EU. Questions
that the judgment prompts in this respect bear on EU law from three distinct
perspectives that warrant closer analysis.

The immediate
question that the judgment solves is whether the executive can rely on its
prerogative powers covering international relations to give notice of
withdrawal from the European Union under article 50 TEU. This is a question of UK
constitutional law, as is the answer offered by the High Court: the executive
can do no such thing. This is – the constitutional law argument goes – in good
part because the exercise of prerogative powers cannot encompass alteration of
domestic laws. Whilst withdrawal from the EU through the article 50 process will
inevitably affect a large body of law that has become domestic through the 1972
European Communities Act (ECA).

In particular,
the High Court, building on the parties’ submissions, distinguishes three classes
of EU law rights that have gained domestic law status (par. 57-61). A first
class includes rights that could be replicated in UK law following withdrawal
from the EU, such as rights descending from EU employment law. A second class
includes rights that British nationals enjoy in other EU Member States, such as
the right to reside and work. A third class includes rights, such as the right
to vote for the European Parliament or to trigger preliminary references at the
CJEU, that are not capable of replication in domestic law following withdrawal
from the EU. According to the High Court, it was Parliament that, through the
ECA, brought into effect these three classes of rights (par. 62-66). And thus
none of the three classes can be repealed through the executive prerogative
powers (par. 92).

The reasoning
flows as to classes one and three. However, it runs into some difficulty as to
class two. Rights in this class are, in effect, transnational rights: they are
grounded in EU law, and ultimately descend from UK membership in the EU, but
they are implemented through the domestic law of other Member States, and they
are enforced in the courts of other Member States. They are not UK domestic
law. The High Court nonetheless files them together with the other two
categories. Parliament knew and intended that as a result of the ratification
of the Treaties – the argument goes – British citizens would have these rights
enforceable in other Member States. This knowledge and intention on the part of
Parliament is tantamount to Parliament ‘creating’ relevant rights (par. 66). As
a result, the High Court decides that neither rights in classes one and three –
that have been introduced in domestic law – nor rights in class two – that are
‘wider rights of British citizens’ descending from the Treaties, can be undone
by royal prerogative without Parliament’s intervention (par.92). Under cover of the same legal argument, the
High Court achieves here two different results. In respect of rights in classes
one and three, it applies the constitutional argument that the executive
through the royal prerogative cannot alter domestic law. In respect of rights
in class two, it further recognizes Parliament’s, rather than the executive’s,
responsibility for altering a set of transnational rights grounded in EU law.

While the
distinction is subtle, it has repercussions beyond the constitutional argument
that is at the heart of the judgment. This angle of the High Court’s decision
engages, albeit without explicit acknowledgment, the broader question of the necessary
safeguards for transnational rights in the context of withdrawal of a Member
State from the EU. The question links to EU law from three perspectives: it is grounded
in the very nature of EU law; it may have a EU law answer; and the answer,
whether grounded in EU law or in national choices, is bound to affect the
prospects of EU law.

In the former
sense, EU law has a hybrid nature: it is neither just Treaty law, nor fully
domestic law, and it encompasses transnational rights. The High Court
recognizes on the one hand this peculiarity of EU law as one of the distinctive
legal features of the case it is hearing: principles of EU law weave a direct
link between rights and obligations arising from governmental action at the
international level and the content of domestic law (par. 34). On the other
hand, the existence of transnational rights as part of EU law complexifies the
legal issues surrounding withdrawal of a Member State. Beyond the international
obligations and domestic rights that withdrawal affects, what of the
transnational rights that depend on the Treaties but have vested and are
enjoyed in the domestic law of Member States beyond the withdrawing one? Are there any legal barriers to erasure of
the latter rights, or are these at the disposal of the executive and/or of
political decision? The question of safeguards is particularly important with
regard to transnational as opposed to other classes of rights that a Member
State’s decision to withdraw may affect. Holders of relevant rights may not
have a voice in the political process that determines a Member State’s decision
to withdraw. The High Court’s solution in this respect is to construe a set of such
transnational rights – rights of British citizens enjoyed in other Member
States - as domestic rights. As a result it subjects the process and conditions
of their repeal to some checks and balances rather than leaving them to be
washed away by government action at the international level.

The finding that
transnational rights are domestic law is a dictum, and the High Court’s offered
solution is but an accident of its decision on the main constitutional
question. It may succumb, together with that decision, in the context of
Supreme Court review. Yet, the High Court’s treatment of the issue points to a
further EU law question that the Supreme Court may have to consider: whether EU
law itself requires any peculiar safeguards for transnational rights as part of
a Member State’s decision to withdraw. The Treaties provide scant guidance. Article
50 allows any Member State to decide to withdraw ‘in accordance with its
constitutional requirements’. On its face, the text does not leave much room
for EU law safeguards of any peculiar categories of rights in the process of
making such decision. Yet there may be a question as to whether the duty of
sincere cooperation under article 4(3) TEU, which of course binds an exiting
Member State up until the point of effective withdrawal, constrains that
process of decision making envisaged in article 50. Article 4(3) requires,
among others, that a Member State facilitate the achievement of the Union’s
tasks and refrain from jeopardizing the attainment of the Union’s objectives.
Could this requirement be read to mandate peculiar safeguards, in the process
of deciding and triggering withdrawal, for the position of minorities and of
disenfranchised stakeholders whose rights and interests the EU purports to
protect? Probably a stretch, but possibly another question that the CJEU may
need to hear.

Finally, whether
mandated by EU law or driven by autonomous constitutional arguments, the types
of safeguards granted to transnational rights in the context of the process of
deciding and setting in motion withdrawal affect the very prospects of EU law.
This is a body of law that several theorists, from Philip Jessup to Kaarlo
Tuori, have identified as a first concrete example of transnational law. Secession
from a transnational law system, and its impact on laws that cut across
borders, represent an important testing ground for the credibility and
reliability of that system of law. The
point is not denying the voice of any democratic majority, or stopping Brexit.
Or siding with Varoufakis’ argument that the EU is like Hotel California – one
can check out, but can never leave -. The point is that the process of withdrawal,
albeit set in motion by the decision of a democratic majority, has
repercussions well beyond the jurisdiction and reach of that majority. First, it
impinges on the status and rights of constituencies, who in the relevant
democratic process were anything but disenfranchised. Second, it strips
participating but opposed minorities of their transnational rights without
appeal. The way these constituencies and minorities, as well as their interests
will be taken into account in the decision, and process, of withdrawal will
tell a telling tale as to the democratic credentials, and legitimacy of EU
transnational law. In this respect, the choices of a withdrawing Member State
with a strong tradition as a constitutional democracy subject to the rule of
law (par. 18 of the High Court judgment) have a precedent to set, and bear
responsibility, well beyond the contingencies of Brexit.

Thursday, 3 November 2016

Today’s ruling by the High Court
requires the government to obtain approval from Parliament if it wishes to
trigger ‘Article 50’, ie the process of withdrawing from the European Union. This
short post won’t focus on the national constitutional law issues, but on the
process of possible involvement of the EU courts in Brexit disputes.

The government has announced its
intention to appeal today’s ruling to the Supreme Court. Some have suggested
that the case might then be ‘appealed’ to the ECJ, but this misunderstands the
judicial system of the European Union. There is no ‘appeal’ from national
courts to the ECJ. Rather a national court may suspend proceedings and ask the
ECJ some questions relating to EU law that the national court believes it needs
the answers to. After the ECJ gives the answers to those questions, the
national court resumes its proceedings and gives its judgment in light of them.
The ECJ normally takes about 16 months to give a ruling, although it could (and
probably would) fast-track a case raising fundamental questions about Brexit.

What EU law questions arise in
this case? The obvious one is whether a notification to leave the EU under
Article 50 of the TEU can be revoked once it is given. This is relevant because
at the heart of the UK case is a dispute about the ‘royal prerogative’, ie the underlying
powers of the UK executive. The royal prerogative allows the executive to
conduct international relations, including decisions relating to international
treaties. But prior case law makes clear that the prerogative cannot extend to
taking away rights conferred by Parliament. The High Court has ruled today that
this is what would happen if the executive invoked Article 50, since rights are
conferred by the European Communities Act.

Yet logically if an Article 50 notification is
revocable, then the decision would arguably not as such necessarily lead to the
removal of rights conferred by Parliament. Only the subsequent failure to
revoke it would. The High Court assumed in its judgment that the notification
was not revocable, but that’s only
because the parties agreed on this. The claimants agreed that an Article 50 notification
was irrevocable because otherwise it would have weakened their case. The
government agreed, perhaps because it would have been politically awkward to
argue the opposite.

But it’s not up to parties in a
national proceeding to decide on what the correct interpretation of EU law is.
Article 267 TFEU says that final national courts must send questions of EU law
to the ECJ if necessary to give judgment. So the Supreme Court may decide that
it wants to have this question answered.

The revocability of Article 50 is
not just an issue in this litigation. It’s a broader political issue, since
some politicians would like there to be another referendum before the UK fully
leaves the EU, once the public knows the terms of exit. That’s only a feasible
suggestion if it is possible to revoke an Article 50 notification once it’s
made, given that the EU refuses to discuss the terms of exit with the UK until
that notification is made.

What if the Supreme Court decides
not to refer to the ECJ – is that the end of the matter? Not quite. Since the
ECJ judgment in Kobler, it’s
established that a Member State can be liable in damages if its supreme court
gets EU law wrong without asking the ECJ questions about it. So individuals
could go to a lower UK court claiming damages on this basis, and the lower
court might deem it necessary to clarify the point by asking the ECJ about revocability,
perhaps ordering the government not to make the Article 50 notification in the
meantime.

There are several other
possibilities for Brexit issues to come before the CJEU. It might be disputed
what could be included within the scope of an Article 50 withdrawal agreement,
and in particular whether this must be separate from a treaty on the
post-Brexit EU/UK relationship. There might be other issues about that latter
treaty; some say that the EU legally cannot negotiate one until the UK has
fully left. Many say that the UK cannot negotiate trade deals with non-EU
countries until it has left.

How could such issues reach the
Court? Article 218 TFEU allows it to rule on future treaties between the EU and
non-EU states, so in principle could be used. Any Member State, or the EU
Commission, Council or Parliament, could invoke it. A lot of issues arise here,
though. Does Article 218 apply to Article 50 at all – since the UK hasn’t left
yet, and Article 50 only refers to some parts of Article 218? Is it too soon
(for now) to ask about future treaties between the UK and EU, given that
notification and negotiations haven’t happened yet?

Alternatively, Article 273 TFEU
allows Member States to bring a dispute with each other about issues related to
EU law to the CJEU by special agreement. However, the UK would have to be
willing to use this provision, and it would have to find another Member State
to agree to do so, in order to bring issues before the ECJ.

Other issues may arise about
Brexit, even in other Member States’ national courts. An Irish court has
already ruled that European Arrest Warrants issued by the UK are still valid in
light of Brexit. But this issue is likely to keep arising. UK citizens living
in the EU (and vice versa) might want to litigate the argument that they cannot
lose their EU citizenship.

In any event, the status of British
goods, services and citizens in the remaining EU will doubtless be raised in
the EU courts after Brexit, either by means of interpreting EU/UK treaties and/or
autonomous EU laws (governing non-EU migration, for instance).

It’s probably only a matter of
time before some aspect of the Brexit issue gets decided by the EU courts; and
there’s no small irony in that prospect.

Wednesday, 2 November 2016

Charlotte O’Brien,
Senior Lecturer, York Law School, University of York

Laurent Pech,
Professor of European Law, Jean Monnet Chair of EU Public Law at Middlesex
University London

This
post primarily aims to clarify the scope of EU free movement rules with the
view of addressing some of the most common (legal) misconceptions one may
regularly encounter in the British media and elsewhere. We argue that the much of
the criticism of free movement has targeted a ‘straw man’, with little regard
to the actual regime.

In
the UK, for instance, there seems to be a wide consensus across the political
spectrum on the need to restrict ‘current EU freedom of movement rules’ yet
‘current’ EU rules are often misunderstood or misrepresented. To argue that the UK has simply ‘no
control’ over immigration from the rest of the EU is inaccurate. Similarly, one
may regret that some EU actors tend to paint freedom of movement as one which
could not be subject to restrictions and one which would be inherently
connected with rules on the free movement of goods, capital and services.

These aspects and many others
will be addressed below via 10 questions & answers, which should be
of interest to members of the general public looking for an (hopefully) accessible
and legal overview of EU free movement law. The post will end with a brief
outline of the main models and possible options for the UK to consider when it
will have to agree the ‘framework for its future relationship with the Union’
to quote Article 50 of the Treaty on European Union (hereinafter: TEU).

(1) Does EU Law guarantee an absolute right
to move and reside anywhere in the EU?

No.
Treaty rights of free movement are subject to limitations.

Article
45(3) of the Treaty on the Functioning of the European Union (hereinafter:
TFEU) states that the rights to (a) accept offers of employment, (b) move
freely between States to take up employment, (c) reside in other Member States,
and (d) the right to stay in another Member State after
employment has finished, are subject to ‘limitations
justified on grounds of public policy, public security or public health’. This
means, to simplify, that national authorities can adopt restrictive measures on
a case-by-case basis against EU workers on any of these three grounds. Arguably
the most mutable of these grounds is the public policy limitation, and Gareth
Davies has argued that this limitation has been underexplored when
it comes to free movement concerns, suggesting that greater use of permitted
restrictions might have avoided free movement becoming as contentious an issue
as it did in the UK.

Article
45(4) TFEU adds a further exception – that the free movement provisions shall not
apply to employment in the public service, so that where roles are thought to
be nationally sensitive, involving participation
in the exercise of powers conferred by public law and duties designed to
safeguard the general interests of the State, they may be reserved for
nationals. This does not amount to a right to employ non-nationals and then
treat them differently – once admitted to the labour market, they should not be
discriminated against.

Similarly, there
is another derogation in respect of activities connected with the exercise of
official authority for self-employed persons and providers of services (see
Articles 51 and 62 TFEU). Discrimination against non-nationals is allowed but
only with regard
to positions involving a direct and
specific connexion with the exercise of official authority. This is why it
would not for instance be lawful to adopt a general ban on non-UK academics
providing‘advisory work’ for UK public bodies such as the Foreign and Commonwealth
Office
on Brexit related matters.

The key point remains that EU Treaties have always clearly provided that
free movement rights are not absolute and included in addition a number of permanent
derogations to the general principle of non-discrimination on grounds of
nationality. Unsurprisingly, however, a number of guiding principles have been
developed by the Court of Justice to prevent an abusive reliance on these
exceptions by national authorities.

Secondary
EU legislation forms the ‘specific expression’ of the EU Treaty free movement
rights, and sets out additional and more specific conditions and limitations.
The key condition for those concerned about benefit tourism is that an EU
national does not have a right to reside in a host Member State if they become
an “unreasonable burden” upon the public purse. Directive 2004/38 (the “EU
citizens’ Directive”, which is the source of the main legal rules on this
issue) sets out the ‘categories’ of people with an EU-law based right to reside
in a host Member State for longer than three months – essentially, workers/the
self-employed and their family members, students, and the self sufficient.
Students must have health insurance and make a declaration of sufficient
resources.

In
recent years, CJEU rulings have made some of these limitations more explicit.
The Dano
case made clear that someone who moved for the ‘sole’ purpose of claiming
benefits would not have a right to reside in a member state under EU law. The Breycase approved of member states setting
a right to reside condition in order for a claimant to be eligible for
particular social security benefits, not just social assistance benefits. So
member states have discretion over the arrangement of their welfare systems and
eligibility conditions, and are entitled to set conditions tied to having a
right to reside that only apply to EU nationals, and make it impossible for
economically inactive EU nationals to claim benefits.

And
in Alimanovicand Garcia Nieto,
the CJEU emphasised that EU nationals do not have entitlement to social
assistance benefits during their first three months of residence in a host
Member State, or at any point at which they are classed as a ‘jobseeker’, even
where the benefit in question appears to be an unemployment benefit. EU
jobseekers are entitled to claim benefits that facilitate access to the labour
market, but not where the benefit has a social assistance element and primary
aim of the benefit is the preservation of dignity. In the Commission v
UK case the CJEU appear to have extended the exclusion to full
social security benefits, not just those with a social assistance element.
Economically inactive EU nationals must be self sufficient in order to have a
right to reside, and EU nationals who are workers must demonstrate that their
work is genuine and effective.

Furthermore,
there are some geographic limitations – free movement of persons applies for
people moving from the Overseas Countries or Territories associated with the
Union (OCTs), to the EU, but does not apply to people moving from the EU to
OCTs as will be explained below.

(2)
Does EU Law prevent temporal and geographical exceptions?

It would be wrong to think that
EU law has never allowed for some extensive geographical and temporal exceptions
with respect to the free movement of people.

While the default principle is
that EU law applies in the territory of all the Member states, some exceptions
exist especially when it comes to overseas regions and territories of relevant
Member States (so much so that there is a specialised field of study known as EU Law of the
Overseas). This
means for instance EU free movement law does not uniformly apply to the whole
of the territories of all the Member States. The relevant legal framework is
rather complex. In a nutshell, there is free movement in one direction only.
Inhabitants of the countries making up the Netherlands Antilles may move to any
EU Member State as they are Dutch and EU citizens, but EU citizens from any
other Member State do not have symmetrical rights to move there. This is lawful
provided that the authorities of the countries of the Dutch Caribbean apply the
same restrictions on entry and residence equally to the nationals of the Member
State with which it is associated and the nationals of other EU Member States
(authors are grateful for Prof Kochenov’s insight on this issue. For more
details on ‘one-way EU free movement’ with respect to the OCTs, see his article
here).

But one does not have to go
overseas to see territories where the application of EU law may vary
dramatically depending on the subject matter. To give a single example, while
EU rules on free movement of goods apply to the Channel Islands, the rules
relating to the free movement of persons and services do not (see Protocol No 3
to the UK’s Act of Accession).

To make matters even more
complex, EU free movement rules may apply to nationals of non-EU Member States.
For instance, they apply to Swiss nationals and nationals of Norway, Iceland
and Liechtenstein (though note that free movement is in effect asymmetrical as
far as Liechtenstein is concerned – see question (7) below) which are not EU
Member States, by virtue – to simplify – of a number of bilateral agreements
between the EU and those countries.

With respect to temporal
exceptions to the free movement of people within the EU, one may for instance
refer to the Treaties of
accession of 2003, 2005 and 2012, which included provisions
allowing for transitional restrictions to be imposed by existing EU Member
States on workers from the new EU Member States that joined the EU in 2004,
2007 and 2013 respectively. To give a single example, one may cite the chapter
entitled ‘freedom of movement for persons’ of Annex XII to the 2003 Act of
Accession regarding Poland. According to this text, the rules governing freedom
of movement of workers and freedom to provide services shall apply subject to a
number of transitional provisions on the basis of which the then EU-15 could
adopt national measures in order to regulate ‘access to their labour markets by
Polish nationals’ or adopt measures derogating from the freedom to provide
services as far as companies established in Poland are concerned.

By contrast to most EU Member
States, the UK decided not to derogate from the free movement of workers during
the seven-year period with respect to nationals of the countries that joined
the EU in 2004. In other words, the UK along with Ireland and Sweden sovereignly
decided to open their labour markets directly from 1 May 2004 with respect to
workers from countries such as Poland. The UK did however impose transitional
provisions departing from the principle of equal treatment (see Question (3) below).

The UK also subsequently decided
to derogate from free movement with respect to Bulgaria and Romania when these
two countries joined the EU in 2007. This meant that workers from the two
countries were not allowed, as a matter of principle, to work freely in the UK before
1 January 2013, that is, seven years after Bulgaria and Romania had joined the
EU. To oversimplify, Romanian and Bulgarian nationals wishing to work in the UK
had instead to secure the permission of the Home Office for doing so. The same
has applied to Croatian workers since Croatia joined the EU in 2013.

(3) Has EU Law led to an uncontrolled
migration regime within the EU?

The
free movement system means that EU nationals and their family members who
fulfil the conditions within EU law can move and reside freely within the EU,
which means that Member States cannot impose quotas, or add additional
conditions through an immigration points system – unless some derogation from
Article 45 TFEU were agreed to be necessary on pressing grounds of, e.g. public
policy.

Fulfilling
the conditions set by the EU, in order to exercise free movement rights,
typically means being a worker. This is therefore not uncontrolled migration,
but the means of control is not immigration law – it is the labour market,
which is the key to a right to reside and to stay in another Member State. This
is an important point too often ignored. Moving away from this labour market based
regulated form of intra-EU migration control would necessarily mean
implementing instead a dirigiste
bureaucratic form of migration control. This would not be a cost-neutral policy
decision. It would likely be more time consuming and costly than the current market-based
regulation system derived from EU law. One well informed expert suggested in
this respect that ending the free movement of people in the UK would create a ‘bureaucratic
nightmare’.

As
noted above, Member States have in recent years been permitted to moderate the
effect of accession of new states upon their labour markets by temporarily
derogating from the free movement of workers with regard to new acceding
states. While, as previously mentioned, the UK chose not to derogate from free
movement for the A8 enlargement in 2004, it imposed a ‘worker registration scheme’ according to
which A8 workers were not entitled to any out of work benefits until they had
completed 12 months of registered work, and if the registration was not
completed correctly, all subsequent work, until the lapse of the transition
measures, was to considered unlawful, not conferring a right to reside or
counting towards permanent residence. The transition measures ended in 2011.

The
UK’s derogation from the free movement provisions in 2007 for the A2 States,
Bulgaria and Romania, involved adopting a worker authorisation scheme, which
essentially required Bulgarian and Romanian nationals to apply for
authorisation to work on the basis of falling into an authorised category of
work, ie specific sectors. These
transition measures ended on the 1 January 2014. The UK also derogated from the
free movement provisions on the accession of Croatia in 2013, and now requires
Croatian nationals to obtain authorisation to work, and limits such
authorisation to skilled work.

There
was some implication in the lead up to the UK referendum that membership of the
EU increased the ‘risk’ of unauthorised immigration
and/or asylum seeking from third countries. But EU free movement law does not
affect Member States’ (non-asylum) immigration regimes applied to non-EU
nationals who are not family members of EU nationals. The Common European
Asylum System provides a means for determining the state responsible for
processing asylum claims, and under the problematic Dublin system this usually means that the
country of first entry is responsible – putting most pressure on countries
around the periphery of the EU, not the UK. A proposal for a reformed system for asylum burden sharing
is in preparation, but the UK has secured an opt-out.

(4) Does EU Law prevent Member States from
dealing with welfare tourism?

The
short answer is a clear no. The CJEU has found that Member States are entitled
to reserve the right to equal treatment as regards welfare benefits to those
with an EU law-based right to reside.

To
establish such a right, EU nationals must show that they fit one of the given
categories in Directive 2004/38 – i.e. that they are
workers, family members of workers self-sufficient, or students (who must
declare self-sufficiency). EU law does not provide a right to reside for
persons who move solely to claim benefits, and creates only limited rights for
jobseekers, who are not entitled to claim social assistance.

There
is no entitlement for those who move to seek work to social assistance for the
first three months of residence; instead those who have been working elsewhere
and who are entitled to a contributory job seeking benefit in their home State
are entitled to bring it with them when they arrive in a host State, if they
meet the conditions for ‘exporting’ their benefit.

As
far as workers are concerned, EU law requires EU national workers to be treated
equally with own state nationals for the purposes of social and tax advantages.
In some cases this means that social security (but not social assistance)
benefits can be exported to another Member State, so long as the EU national is
a worker in the paying State. EU nationals who do not fall into these
categories do not have a right to reside
under EU law and so do not have equal access to welfare benefits.

Member
States thus have some considerable freedom to limit benefit entitlement to
those considered to be contributors, and so to avoid awarding benefits to those
perceived to be benefit tourists. It is therefore misleading to suggest, as
Theresa May did in August 2015, that EU law would guarantee a freedom to
claim benefits.

However,
in any discussion of the need to ‘deal’ with welfare tourism, we cannot ignore
the absence of evidence that the problem exists. If we look to the take
empirical evidence on the costs/benefits of EU immigration, e.g. the cost/benefit study by UCL, this suggests
that EU nationals are net contributors, and ONS figures show that in the UK, EU
nationals are less likely than UK nationals to be unemployed.
The Department for Work and Pensions responded to a EU Commission query in 2013saying that they had no evidence of
benefit tourism. Oxford University’s Migration Observatoryconcluded that
the more recent the migrant’s arrival, the more likely the positive
contribution. One may finally mention a report by
the Centre for Economic Performance (CEP) at the London School of
Economics, published on 11 May 2016, in which its authors argue that ‘the
empirical evidence shows that EU immigration has not had significantly negative
effects on average employment, wages, inequality or public services at the
local level for the UK-born … At the national level, falls in EU immigration
are likely to lead to lower living standards for the UK-born. This is partly
because immigrants help to reduce the deficit: they are more likely to work and
pay tax and less likely to use public services as they are younger and better
educated than the UK-born. It is also partly due to the positive effects of EU
immigrants on productivity.’

(5)
Does EU Law prevent Member States to prevent abuse and fraud such as marriages
of convenience?

EU free movement law is
regularly presented as preventing national authorities from ‘controlling’ EU
citizens seeking to move and reside in the UK. One must however emphasise that
EU law cannot be relied upon in case of abuse. In other words, EU law
explicitly entitles Member States to ‘adopt the necessary measures to refuse,
terminate or withdraw any right conferred by [EU free movement law] in the case
of abuse of rights or fraud’ and gives the example of marriages of convenience
(see Article 35 of Directive
2004/38).

To prevent any abusive use of
this ‘abuse clause’, whereby member states might unduly strip people of their
rights, EU law also unsurprisingly provides that any measure adopted by a
national authority on this basis must however be proportionate and subject to
the usual procedural safeguards such as access to judicial and administrative
redress procedures in the host Member State.

It would be wrong therefore to
claim that EU law prevents Member States from tackling abusive reliance on EU
free movement rights, which has been defined as any ‘artificial conduct entered
into solelywith the
purpose of obtaining the right of free movement and residence under [EU] law
which, albeit formally observing of the conditions laid down by [EU] rules,
does not comply with the purpose of those rules.’ Fraud, that is, any deliberate
deception or contrivance made to obtain the EU right of free movement and
residence may similarly be sanctioned by the relevant host Member State.

In practice, it is for each
Member State to decide how best to tackle fraud and abuse of EU free movement
rights. As noted above, EU law does not prevent Member States from
investigating individual cases where there is a well-founded suspicion of abuse
and adopt necessary sanctions in cases of proved abuse. It is not unusual for
national authorities to choose not to go to the expense of doing so; a recent
analysis on the Free Movement blog noted that ‘the latest figures suggest there are very
few investigations and the Home Office is unwilling to release information on
the outcome of the investigations.’ However,
this lack of
action is sometimes attributed to the legal constraints of EU free movement law
(see e.g. the letter sent by David Cameron to
Donald Tusk on
10 November 2015 citing inter alia ‘sham marriage’ to justify a rewriting of EU
free movement rules). These legal constraints however merely call for a
case-by-case assessment of any possible abuse of EU free movement rights and
for any individual investigation to be carried out in accordance with
fundamental rights. In other words, EU law only requires Member States to
comply with the rule of law in this area.

(6)
Does EU Law prevent Member States from removing criminals from their
territories?

Some British newspapers
regularly seek to paint the EU as preventing the UK from denying entry,
refusing residence or deporting citizens from other EU Member States. This is
plainly false. The EU Treaties explicitly provide that national authorities can
limit the exercise of EU free movement rights on grounds of public policy,
public security or public health. The main piece of EU legislation dealing with
the rights of EU citizens and their family members to move and reside freely
within the EU contains a whole chapter on ‘restrictions on the right of entry
and the right of residence on grounds of public policy, public security or
public health’ (see Chapter VI of Directive
2004/38).

In other words, and to cite the
European Council, host Member States may ‘take the necessary restrictive
measures to protect themselves against individuals whose personal conduct is
likely to represent a genuine and serious threat to public policy or security.
In determining whether the conduct of an individual poses a present threat to
public policy or security, Member States may take into account past conduct of
the individual concerned and the threat may not always need to be imminent.
Even in the absence of a previous criminal conviction, Member States may act on
preventative grounds, so long as they are specific to the individual
concerned.’ (Decision of the Heads of State or Government, meeting within the
European Council, concerning a new
settlement for the UK within the EU – N.B. This
statement merely summarises the current situation notwithstanding
that it appears in the now defunct ‘new settlement’ following the outcome of
the UK’s Brexit referendum)

Compliance with the rule of law
and respect for human rights however mean that EU Member States must comply
with a number of substantive and procedural safeguards provided by EU law. When
it comes for instance to public policy or public security, national measures
justified on these grounds must be proportionate and based exclusively on the
personal conduct of the individual concerned, which must represent a genuine,
present and sufficiently serious threat affecting one of the fundamental
interests of society. EU law also provides for a number of procedural
safeguards. For instance, any decision to deny entry or expel an EU citizen
must be notified in writing and include precise and full information of the
grounds on which the decision is based. In the absence of such safeguards,
nothing would prevent national authorities from behaving arbitrarily and target
certain individuals or groups for political or economic reasons.

While one may legitimately
defend the view that the substantive and procedural safeguards provided by EU
law are too protective of EU citizens and their family members, critics in most
cases fail to make clear the extent to which the current safeguards should be
lowered.

To argue however that the EU
Court of Justice has prevented the UK from deporting 50 criminals from other EU
Member States, as was argued by Vote
Leave during the Brexit campaign, is simply false. The record on this issue
has been set straight by Professor Steve Peers in this blog post.

(7)
Does EU Law prevent Member States from imposing a ‘brake’ on EU immigration?

The short answer is yes as EU
law currently stands. This certainly does not mean that EU Law provides for any
‘absolute’ right to move and reside freely within the territory of EU Member
States. As described above in our answer to Question 1, EU free movement rights
can only be exercised in accordance with the conditions and limitations laid
down in the Treaties and the legal instruments adopted thereunder. And while
the EU Treaties provide for general derogations as regards the principle of
non-discrimination on grounds of nationality with respect to employment in the
public service or activities connected with the exercise of official authority,
any permanent quota or reliance on a ‘brake system’ regarding intra-EU
migration would not be compatible with EU law. Any general ban on EU workers
being treated equally with national workers as regards employment, remuneration
and other conditions of work and employment would similarly breach EU Treaties.

The compatibility of a provisional,
temporary ‘emergency brake’ on equal treatment with EU Treaties was however
assumed by the European Council when it agreed last February to push for the
adoption of a new ‘alert and safeguard mechanism’ in order to assuage the
concerns of the UK government then led by David Cameron (this mechanism formed
part of the ‘new settlement
for the UK within the EU’
whose entry into force was however dependent on a decision by the UK to stay in
the EU). This proposal was not for a brake on immigration, but on EU national
workers’ access to in-work benefits.

This mechanism was supposed to
work as follows:

(i)Any
Member State facing an inflow of workers from other Member States of ‘an
exceptional magnitude over an extended period of time’ could avail of the new
alert and safeguard mechanism;

(ii)In
order to be authorised by the Council to limit the access of newly arriving EU
workers to non-contributory in-work benefits for a total period of up to four
years, the Member State was expected to demonstrate the existence of ‘an
exceptional situation’ affecting ‘essential aspects of its social security
system’ or leading ‘to difficulties which are serious and liable to persist in
its employment market or are putting an excessive pressure on the proper
functioning of its public services’.

(iii)Assuming
that such a demonstration had been offered, the Council could authorise the
Member State concerned to restrict access to non-contributory in-work benefits
to the extent necessary.

(iv)Finally,
any authorisation would have a limited duration and the 4-year restriction on
access to non-contributory in-work benefits could only apply to EU workers
newly arriving during a maximum period of 7 years.

Contrasting
legal views have been expressed regarding the compatibility of this new
safeguard mechanism with the EU Treaties. In our opinion, this mechanism would
have been vulnerable to legal action as its compatibility with EU Treaties is arguable
in the absence of a Treaty amendment.

Notwithstanding
this legal issue, we have always found it difficult to understand how the UK
could rationally avail itself of such mechanism considering that it then
enjoyed the highest rate of employment in UK history. Furthermore, evidence of
any negative impact of EU work immigration to the UK on vulnerable workers and
the sustainability of the UK welfare system was lacking (see this Financial Times
article
published on 22 February 2016). Furthermore, it has since emerged that the UK
government did not in fact possess any hard evidence which would show the
negative impact of EU migration to the UK and could justify the activity of the
agreed ‘emergency break’ (see this article by the former deputy director
of the policy unit’s in David Cameron’s government: ‘To be honest, we
failed to find any evidence of communities under pressure that would satisfy
the European Commission. At one point we even asked the help of Andrew Green at
MigrationWatch, an organization that has
been critical of migration. But all he could provide was an article in the
Daily Telegraph about a hospital maternity ward in Corby. There was no hard
evidence.’)

This EU safeguard mechanism is,
in any event, no longer on the table. The UK could however seek to join the
EFTA and remain part of the EEA post Brexit, which would offer the advantage of
maximum access to the EU’s internal market with the additional option of availing
of the special safeguard regarding free movement of people laid down in Article
112 of the EEA agreement:

1.
If serious economic, societal or environmental difficulties of a sectorial or
regional nature liable to persist are arising, a Contracting Party may
unilaterally take appropriate measures under the conditions and procedures laid
down in Article 113.

2.
Such safeguard measures shall be restricted with regard to their scope and
duration to what is strictly necessary in order to remedy the situation.
Priority shall be given to such measures as will least disturb the functioning
of this Agreement.

3. The
safeguard measures shall apply with regard to all Contracting Parties.

Assuming that the UK aims and is
able to remain part of the EEA after its eventual exit from the EU, triggering
this provision with the view of limiting EEA labour immigration to the UK would
not however be cost-free. Indeed, and to the best of our knowledge, none of the
contracting parties to the EEA has ever done so with respect to labour immigration
if only because another provision of the same agreement entitles parties
negatively affected by safeguard measures to take ‘proportionate rebalancing
measures’ (the special regime granted to Liechtenstein with regard to nationals
of EU Member States and EFTA States, which will be briefly mentioned below, is
not directly based on Article 112 EEA).

In other words, should the UK as
an EEA member trigger this provision in order to impose quantitative
limitations or restrictive rules regarding entry, residence and employment of
EEA nationals in the UK, it could then be subject to what would be essentially
retaliatory measures focusing for instance on UK banks’ passporting rights
(i.e. rights derived from EU law which enable banks based in the UK to offer
financial services to the rest of the EEA without having to follow the
regulations of the countries where they are offered). Furthermore, the UK would
have to accept that any dispute in this context may be referred to an
arbitration panel (see Protocol 33 on arbitration
procedures of the EEA Agreement).

In addition to this EEA general
safeguard mechanism, the EU and EFTA countries were able to agree a rather
unique arrangement regarding Liechtenstein with respect to free movement of
people, which was initially supposed to be provisional (see Protocol 15 on
transitional periods on the free movement of persons) but ended up becoming de facto
permanent (for more details see this 2015
Communication
from the European Commission). In a nutshell, due to its specific nature as a
microstate with a population of 36,925 with an already unusually high
percentage of non-national residents and employees, Liechtenstein was permitted
to introduce quantitative limitations (aka a quota system) to control the
number of EEA citizens wishing to take up residence via a system limiting the
number of residence and short-term permits a year. In 2015, the Commission
concluded that there is ‘no need to make any changes to the current rules’
until another review of this specific arrangement takes place in 2019.

It has been suggested that a
Liechtenstein-inspired solution may be the way forward as far as the UK is
concerned (see the proposal by Vicky
Ford, a Conservative MEP as reported in The Guardian).
This is highly doubtful if only because the quota system agreed for
Liechtenstein was explicitly justified on the basis of this country’s ‘specific
geographic situation’ and a total number of employees which is almost equal to
the number of residents, 52 % of whom commute from neighbouring countries, a
situation in no way comparable to the UK’s (see Question 10 below for an
overview of other possible options for the UK to consider).

(8)
Does EU Law only guarantee a right of permanent residence after five years?

There has been a fair amount of
confusion on the EU right of permanent residence in the UK. To put it briefly,
it is regularly argued that such a right would only arise after five years of
residence but this is not entirely accurate.

This point is not easy to
explain briefly. To begin with, it is correct to state that EU Law provides for
a right of permanent residence for EU citizens and their family members after
five years of continuous legal residence in the host EU country. This right
directly derives from EU law and is explicitly mentioned in Directive
2004/38.

What is usually misunderstood
however is that EU citizens and their family members (irrespective of
nationality) can acquire a right of permanent residence, in the sense of
continued and uncontested – but conditional - residence as soon as they move
and reside in a different Member State. In other words, provided that an EU
citizen maintains his/her status as worker or self-employed person, or that
he/she have sufficient resources for himself/herself (and eventual family
members) as well as a comprehensive sickness insurance cover, EU law guarantees
a right of continued residence in the host Member State.

The added value of the new right
of permanent residence after five years of residence laid down in Directive
2004/38 lies in the fact that once it is obtained, this right is no longer subject to the conditions
previously mentioned.

To summarise, EU law guarantees
a conditional right of permanent residence before five years and a nearly
unconditional one after five years (it may be lost through continuous absence
from the state for over 2 years; and there are powers to remove criminals from
the country as discussed in the answer to question (6) above).

To claim that only those having
resided in the UK for more than five years are entitled to claim a right of
permanent residence misrepresents EU law as it stands. This is an important
point considering that it is regularly reported in the press that the UK
government may only seek to allow EU citizens with a right of permanent
residence to stay in the UK by the time the UK leaves the EU, while those with
allegedly no permanent residence right by then would be offered an ‘amnesty’
(see this article from The Telegraph published on 7 October 2016).

This reflects a misunderstanding
of EU law. As noted above, and just to give a single example, any EU worker
residing in the EU is entitled to reside permanently in the UK from day 1 of
his/her residence in the UK as long as he/she maintains his/her status of EU
worker. It might be clearer to propose that rights attach to ‘Article 16’ (of
the EU citizens’ Directive) or ‘unconditional’ permanent residence, rather than
just ‘permanent residence’.

In any case, if the yardstick is
those with an unconditional right to reside thanks to the Directive 2004/38
concept of permanent residence, then the threshold is not always five years.
There are exceptions for instance for those who retire in the host member state
(the threshold is 3 years of residence, if they have been working in the host
state for at least the past 12 months), or if they have to stop working as a
result of permanently incapacitating illness (the threshold is two years), or
if they become incapacitated as a result of an accident at work or occupational
disease (and are entitled to a relevant benefit from the host state), in which
case there is no duration of residence requirement. It is therefore not only EU
nationals who have resided for five years who have a ‘clear cut’
right to reside.

One should also note in passing
that to speak of amnesty in this context is to deeply misunderstand the legal
meaning of this concept, which either refers to a general official pardon for
people, convicted of political or criminal offences or an undertaking by public
authorities to take no action against specified offences during a fixed period.
To speak of ‘amnesty’ to address the situation of EU nationals who have
exercised their free movement rights to move to the UK in full compliance with
the conditions laid down in EU Law, creates an unfortunate and misleading
depiction of lawfully resident and working EU nationals.

(9) Would EU Law or International Law protect
‘acquired’ free movement rights following a British exit from the EU?

First
of all, it is worth noting that we are talking about protection of rights in
the event of a ‘repeal’ of those rights – i.e., if legislation in the UK is
amended to remove free movement rights following the formal withdrawal of the
UK from the EU. It is worth pointing out in this respect that counsel for the
government in the litigation on whether triggering Article 50 requires
parliamentary consent, has argued that the rights of EU nationals do
not simply fall away on exiting the EU. Those rights are part of domestic
law, implementing EU law. It is not impossible that the UK could leave the EU
and leave all the free movement rights in tact. However, we face a question of
what happens if it does not.

Prior
to the referendum, there have been repeated suggestions
that British citizens in the EU and EU nationals in the UK would be able to rely upon the Vienna Convention’s
protection of ‘acquired rights’ to enable them to stay and to protect their
status there.

“Does not affect any right, obligation
or legal situation of the parties created through the execution of the treaty
prior to its termination.”

However,
this provision refers to rights of ‘the parties’. The parties to the EU
Treaties are Member States, not
individuals. It was therefore wrong for Gisela Stuart or Boris Johnson to
imply that Article
70 of the Vienna Convention directly addresses individual free movement rights
acquired Pre-Brexit. For instance, the International Law Commission had for
instance made clear that this provision is simply not concerned with the acquired or vested rights of
individuals. This
is why Jean-Claude Piris (former General Director of the Legal Service of the
Council of the EU) described the Vienna Convention claim as a ‘new legal theory’ with no ‘legal
support in the Treaties’,
which must be disregarded as it ‘would lead to absurd consequences’.

To summarise, while
international law does recognise the notion of ‘acquired rights’, there is, as
observed by Professor Vaughan Lowe QC
a ‘general agreement that the category
of ‘acquired rights’ does not extend beyond property
rights and certain contractual rights’, which means that the EU
‘rights to live, work, receive medical care and retire in
an EU Member State other than one’s own (or for companies, the right
of establishment) would not be included within that category.’

In
any case, claiming a continued right
of residence is a claim for a present and future right, not an acquired one. It
would be strange were it possible to claim continued reliance upon EU Treaties
which have ceased to apply, given that Article 70 (a) of the Convention states
that the termination of the Treaty “Releases the parties from any obligation
further to perform the treaty”. The sorts of past State rights that might be
protected by the Convention could be that the EU could not demand that the UK
pay back Structural Funds paid to correspond with past periods during which the
UK was a member of the EU, where those funds were paid in good legal order.

And
it is worth pointing out that the Convention is a UN instrument, and there is
little ground for supposing that it would be readily actionable to claimants
facing negative administrative decisions, since it does not create direct
rights. Nor is it able to trounce both EU and national laws in other Member
States. If it were able to do so, that would raise significant questions of
supremacy, sovereignty and transparency.

During
the course of the campaigns, Matthew Elliot of Vote Leave also suggested that the EU Charter of Fundamental Rights would protect
British nationals’ rights to stay in the EU. However, (a) the Charter is silent
on the matter of rights of ex-EU nationals; (b) it does not create any
additional rights not already in existence within EU law; and (c) The Charter
is an EU instrument. If the UK exit agreement includes provisions on UK
nationals in the EU (and EU nationals in the UK), then those provisions must be
interpreted in accordance with the Charter – e.g. in accordance with a right to
family life. Outside of the agreement, these individuals may anyway fall within
the scope of EU law, e.g. through having married a national of a Member State
who has exercised their right to free movement, or being the primary carer of a
host State national. In any event, if the UK was no longer bound by the Charter
as a non-member, then UK nationals in the EU seeking to rely upon it would have
to show that their situation fell within the scope of EU law (such as EU legislation
on migration from non-EU countries) for the Charter to apply, and then show
that a fundamental right covered by the Charter was engaged.

The
key point here is that international law relating to ‘acquired rights’ does not
offer any solid basis for a claim to retain EU rights of residence post-Brexit.
And this is why the UK
government, without mentioning the Vienna Convention, has decided that the
criteria which would ‘enable
EU citizens to remain in the United Kingdom following exit from the European
Union will depend on the outcome of the negotiations and the scope of any
reciprocal agreements concerning British citizens who live in other member states.’
(Lord Keen of Elie, 29 June 2016)

While
there are no clear legal guarantees for either the residence rights of UK
nationals in the EU or of EU nationals in the UK, there are nevertheless strong
legal arguments in favour of offering protections to EU nationals in the UK.
The ‘bargaining chip’ stance is dehumanising and ethically problematic; it puts
the lives of nationals from other EU countries living in the UK ‘on hold’ for
an indefinite period of time (with very practical consequences such as
increased difficulties to get loans or mortgages, not to mention the anxiety it
has created). This is why, for instance, Michael Howard, the former Conservative
leader, called on Mrs May to ‘lead
by example’ end the ‘dreadful uncertainty’ facing EU migrants living in the
UK.

That
being said, the suggestion implicitly made by David Davis that EU
nationals could be deported retrospectively (i.e. even if they arrived
before the UK leaves the EU) may, in circumstances where their right to family
life was at stake, be open to legal challenge on the basis of the UK’s Human
Rights Act. See e.g. Matthew White’s post on ‘When can EU citizens be expelled
from the UK after Brexit?’ available here
and Camino Mortera-Martinez & John Springford’s CER insight piece ‘Britain
will struggle to make EU migrants ‘go home’’ available here.
Equally, UK citizens in the remaining EU
could invoke the right to family and private life in the European Convention on
Human Rights, as well as rights in national constitutions, even if they were
not covered by EU immigration law or transitional arrangements. It should be
noted however that winning an Article
8 ECHR claim in the immigration courts it is not straightforward.

(10) What are the main options available to
the UK government?

It is not yet entirely clear
whether the UK government wishes to revise or completely reject the application
of current EU rules in the UK. A complete rejection would not be compatible
with an extensive access to the EU’s single market à la norvégienne (see below for more details on this model).

There is however a large
spectrum of different free movement options that are, in theory, possible for
the UK to consider but the default (political) principle may be summarised as
follows: The more extensive the UK restrictions on the free movement rights of
EU citizens and family members, the less extensive the UK’s access to the EU’s
single market is likely to be. This was the point made by the German
Chancellor, Angela Merkel, when she stated that full access to the European
single market depended on whether on the acceptance of the EU’s four freedoms,
including the freedom of movement of people: “If Britain says
no, it can’t get full access to the European single market”.

Assuming
the UK wishes to retain as much access to the European single market as
possible, it would then have to seek membership of the EEA – the so-called
Norway model. This involves not being an EU member, but applying much of EU
law, including provisions on free movement,
equal treatment on the ground of nationality, and social security coordination.
Some have suggested, slightly further along the spectrum, a Norway-minus model,
that adapts the EEA model, to allow for more restricted movement of workers,
perhaps in return for ‘a bit less single market’ access. Alternatively,
the UK could instead join the EEA and seek to trigger its safeguard mechanism
as noted above in our answer to question 7.

The
Swiss bilateral agreement model is another option that involves free movement but permits greater
restrictions on equal treatment with regard to welfare benefits. The model is
complicated, relying on a ‘patchwork’ of agreements that need regular
updating. The relationship is not entirely stable – calls to renegotiate the
free movement provisions have been rejected by the EU; a Swiss quota initiative
has soured the EU-Swiss relationship, in the
light of which the Swiss government appears to be considering a second
referendum which could ask voters to decide between the unilateral imposition
of curbs on EU migrants and maintenance of Switzerland’s current access to the
EU’s single market (another alternative plan is to sidestep ‘quota
in favour of giving current Swiss residents labor-market precedence’ but
this idea is unlikely to be agreed by the EU).

The
Turkish system is much closer to the other end of the spectrum, since there is
no free movement as such, but there are some special arrangements, such as the
accrual of increasingly ‘equal’ employment rights. Turkish workers legally
employed in the EU are entitled to the same working conditions as EU nationals,
and also have a sliding
scale of rights: after one year of legal employment they are entitled to have their
work permit renewed if a job is available; after three years of legal
employment they are entitled to switch employers and respond to other job
offers within the same occupation; after four years of legal employment they
have free access to any paid employment in that EU country. Borrowing
from this approach could involve heavy restrictions – such as requirements for
residence and work permits – but allowing EU workers, once they had been
accepted into the UK, to accrue residence, employment and social rights during
their time here.

Or
it is possible to envisage ad hoc models at different points along the
spectrum. One such is a Continental Partnership, involving a
reciprocal quota system – the UK imposing a quota system on EU entrants, and
the EU imposing a quota system on UK entrants. This is problematic, since it is
not clear how this could be made workable, partly in light of the substantial
cross border populations already in situ, and the migration flows that stem
therefrom, and also because of the fluidity with which people would likely
shift status (assuming the system did not apply to visitors). The idea of a
quota imposed on the EU as a whole would be tricky to administrate fairly – how
could/should a system deal with a quota being ‘used up’ by one or more states
disproportionately? And should UK nationals be denied the possibility to move
to Poland because the EU quota has already been met by UK nationals in Germany?
The EU Treaties also state that quotas
on non-EU citizens coming to work are decided by Member States individually
(Article 79 TFEU).

A
variation on this idea is ‘preferential movement’ – allowing free movement for
immigrants above a set salary or skill level, and setting quotas below it –
primarily because that accords with ‘UK
public attitudes to immigration’, rather than with
economic evidence. It would likely be administratively and legally complex to
set the categories, then maintain two parallel immigration systems for the same
nationality cohort and monitor continued status for each individual within the
allocated category. Furthermore, it would seem irresponsible for public policy
to be driven by popular ‘feelings’ about the impact of immigration rather than by
evidence of the impact of immigration, especially in a context where the public
may have been misled by media misrepresentation (see e.g. this
article in The
Economist on the EU myths propagated by the British media).

Another
idea floated recently was that of a ‘job-first’ model. This is also not
without problems. It is not clear that it would reduce immigration (which is
the apparent purpose), but would simply place the recruitment process one step
back. This could give more power to gang-masters, who already have the
machinery for cross-border recruitment in place, and are often linked to
employers who provide tied accommodation, and transport their workers to and
from the place of work. This could lead to EU nationals being imported in
groups, and living quite controlled lives, segregated from much of the UK
population.

The
other scheme apparently debated by the UK cabinet, which one may label
‘targeted work permit system’, is similarly problematical. As reported by the Financial
Times, this system would ‘most likely allocate
a set number of visas by sector’ for highly skilled workers in receipt of a job
offer. By contrast, unskilled workers could only gain entry into the UK on the
basis of a temporary workers scheme, which would grant EU unskilled workers
access to the UK for a fixed period of time with no accrued residency rights.
Such a ‘targeted work permit system’ however assumes that one can clearly
define what is an ‘unskilled worker’ as opposed to an ‘highly skilled’ one. It would
be incompatible with access to the European single market in a similar way to
Norway or Switzerland and would be incredibly administratively complex.

Others
have suggested the devolution of immigration policy as far as EU nationals are
concerned. This would mean for instance giving Scotland, Northern Ireland but
also London and Gibraltar
the right to continue to apply current free movement rules to EU nationals and
family members (EEA membership for Scotland would make this a compulsory
feature as rightly noted in this Financial
Times article by Martin Sandbu) or alternatively,
to apply a different but more liberal immigration system on a regional basis
(see e.g. the ‘regional visa system’ proposal made by the City of London which
is available here).
However, it is difficult to see how such systems could be made tenable, without
introducing intra-national migration controls.

In
our opinion, the UK government should not seek to fundamentally undermine the
current EU’s labour market-based system of intra-EU migration control, where
evidence suggests that the system works
well for the UK – a system which both the Japanese
government and the US
Chamber of Commerce have described as key for attracting
and maintaining foreign investment in the UK. Instead of devising cumbersome
and costly alternative schemes, it may be more appropriate to instead aim to revisit
the question of restrictions already permitted within EU law, while also
questioning whether the ‘mischief’ that these proposals are intended to address
actually exists.